A 20-year-old Chinese woman marks time for two years in federal custody as her asylum plea inches through the system

Sunday, April 16, 2000

By Emily Tsao of The Oregonian staff

Delta Flight 52 from Tokyo touched down May 18, 1998, at Portland International Airport. Teen-ager Tomoko Annaka, her mother, sister and a family friend looked forward to stretching their legs after the 10-hour flight before flying on to New York.

What seemed to be an idyllic family vacation was a charade that began to unravel when they handed their Japanese passports to a U.S. Customs Service agent.

The mother was really Mizuho Nakayama Rogers, a Japanese national and Californian with permanent residency. She had agreed to smuggle the three young Chinese women with her into the United States for $15,000.

The inspector, impressed with Rogers' English, almost let them through. But he noticed a Hong Kong stamp in one passport. Did the women like it there, he asked. Rogers answered that they had not been to Hong Kong and did not have plans to go. The ruse was up. The four were taken into custody.

But Xuan Li Zheng, who arrived with the Annaka pseudonym, has gone nowhere. Instead of New York as a final destination, she has sat isolated culturally and physically in jails in McMinnville; Vancouver, Wash.; Portland; Tillamook; and The Dalles.

Entering the country with false documents or no documents is illegal, but Zheng is not behind bars because she has been charged with a crime. The U.S. government normally does not spend time prosecuting such people and instead turns them around and sends them back home.

Zheng is in jail because she decided she wanted to stay in the United States and decided to seek asylum. But by doing so she stepped into a bureaucratic process that has left her stranded in jail for almost two years.

Zheng's case, while unusual, is not new. Another case involving the Immigration and Naturalization Service in Portland received much attention last year when The Oregonian learned that the agency had continued to jail one Chinese girl even after she had been granted asylum. The juvenile had not

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been charged with a crime in the United States. After much public outcry, the INS found her a guardian, and she was released after spending seven months in jail.

But Zheng's case is different, more complex. She has not been granted asylum and in fact was ordered deported. Yet for months she remained and still remains jailed.

As the courts continue to hash out immigration and detention issues, those such as Zheng are paying the price. Her case points out the inadequacies that plague the immigration system and highlights the conundrum the U.S. legal system faces in dealing with illegal immigrants.

Human rights activists say jails are inappropriately harsh settings for asylum seekers, who are not criminals but are treated as such. The language barrier among immigrants, inmates and guards can lead to confusion and tension within close quarters. And the immigration process can take months or even years, forcing some to serve indefinite sentences. But INS officials say they cannot release certain asylum seekers, such as Zheng, whose cases have not yet been resolved. They fear that such people, once released, would disappear and not return for future immigration hearings or leave the country if they are ordered deported.

Average detentions Average detainees spend two months behind bars. Asylum cases specifically are usually heard within six months, some as quickly as eight weeks.

Zheng has been in INS detention for nearly two years. By comparison, the criminal justice system in Oregon sentenced a woman who stole $40,000 from the Troutdale Area Chamber of Commerce to one month in jail, a Molalla man guilty of sex with underaged girls to three months in jail and car thieves who were first-time offenders to no jail time.

The INS says certain cases drag on because asylum seekers appeal the immigration judge's decision to deport them. In other cases, applicants are detained because the INS appeals the immigration judge's decision to grant asylum.

Since Zheng understood little English and little about the U.S. immigration process, her fate rested in the hands of her former attorney and immigration officials. But her case fell through the cracks, her attorneys say, when her former attorney did not follow through with her original asylum appeal. They say Zheng's detention continued because the Chinese government did not issue the necessary papers for her return to China.

In some INS districts, some asylum seekers are released, depending on whether they are considered flight risks or a danger to society. Sometimes release comes down to logistics: whether enough space is available to hold the detainees.

Each asylum seeker's situation is different, and each of the 30 or so INS districts in the country is different. Each INS district operates in part at the discretion of the district director and how that person interprets and implements INS rules.

In Portland, INS district Director David Beebe said he would rarely consider release of an asylum seeker such as Zheng unless she faced a medical emergency or could assist the U.S. government, such as by testifying as a witness in a criminal case.

So Zheng has waited in jail with no place to go. "I didn't do anything bad," Zheng, 20, says in her native Mandarin. "Why do I have to be in jail?"

Beebe of the INS views it differently.

"These people are flouting the nation's immigration laws," he said. "These people are breaking into your home and mine. Isn't the United States your home?"

Latest stop in jail shuffle Against the beautiful backdrop of the Cascades in the scenic Columbia River Gorge sits the new Northern Oregon Regional Corrections Facility, known as Norcor, in The Dalles.

Zheng has spent the last two months there after being shuffled six times among four county jails that hold contracts to house INS detainees.

With little education and little English, the transition from countryside life in China to imprisonment in the United States has been a shock to her.

Zheng grew up in rural Fujian province with her parents and an older brother and younger sister. She led a simple life. Her father sold vegetables. Her mother stayed at home. Zheng finished junior high and then went to work in a clothing factory.

At 17, she said she learned that her parents had sold her into an arranged marriage with a wealthy Taiwanese man in his 50s. She said she could not see herself spending her life with a stranger.

She tried to reason with her parents. She appealed to the Chinese authorities to no avail. In March 1998, she left Fujian for the first time and headed for the United States. Zheng won't detail how, but for two months, she traveled thousands of miles by foot, bus, boat and plane through southern China, Thailand and Toyko. The farthest east she has been is The Dalles.

Restrictions while in custody The life she has at the jail in The Dalles includes one hour a day in a yard about half the size of a basketball court with high concrete walls. A tarp blocks the sky. She is told when to get up, when to work and where to go. She wears unfamiliar jail clothes sometimes several sizes too big for her small frame. She eats strange foods, such as raw vegetables, breads and cheese.

She focuses on one source of pride: her long black hair.

At one jail, she said she saved five weeks' worth of pre-stamped envelopes to trade for shampoo. With the help of another inmate, she trims her hair with nail clippers. At The Dalles, when she learned inmates were given only soap and no shampoo, she cried and cried. "It's my hair," she said. "It is very important."

The county jails she has spent almost two of her 20 years in are designed to punish offenders usually sentenced for periods less than a year. Unlike monolithic state prisons, county jails generally offer little in terms of recreation or education to relieve the tension and boredom of detention, said Michael Levin, Zheng's federal defense attorney.

In 1998, Human Rights Watch, based in New York, released a report titled "Locked Away: Immigration Detainees in Jails in the United States." The organization interviewed 200 detainees in 14 jails in seven states.

"Our general finding was that local jails are never suitable places for INS detainees to be held," said Allyson Collins, a senior researcher based in Washington, D.C. "(The jails) are set up to be punishment. In general, it is an overly harsh situation for immigrants simply awaiting immigration proceedings."

In Oregon, the INS has an average of about 120 detainees at any one time. Recently, 31 were at Norcor with Zheng, each one costing taxpayers $61 a day.

Levin said when he first heard of Zheng's extended time behind bars, "I was shocked" that people can be in jail so long with so few people knowing they are behind bars.

This year, Levin began to work for her release, saying the INS was violating Zheng's rights by detaining her indefinitely. Because Levin is a federal attorney his scope is limited. He can work for her release in the federal courts but cannot be involved in her asylum proceedings. If a federal judge were to release Zheng, she still could be deported if immigration officials do not grant her asylum. Unlike criminal cases, immigration hearings, including asylum cases, are considered administrative and closed to the public. Asylum seekers do not receive the option of free public counsel to handle their immigration cases. If they choose to have a private attorney, they might have to pay several thousand dollars for legal services.

The case against Mizuho Rogers, the woman who claimed to be Zheng's mother, was handled in criminal court. Charged with smuggling aliens and use of a false passport, she was provided a free lawyer. She pleaded guilty to the passport charge and was sentenced to three years' probation and a $500 fine. What happened to the other two women that May 1998 day is difficult to determine. Their real names are not available. Without them, the INS will not say what happened to them.

Asylum seekers who come to the United States under false documentation have no legal right to be released, said Russ Bergeron, director of media relations for the INS in Washington, D.C. But under the discretion of the INS district director, they can be considered for release at certain times.

But Beebe, the Oregon INS director, is reluctant to make such releases for foreigners who try to enter the country illegally. "We don't know who they are," he said. "We don't know if they are a terrorist. We don't know if they are a child molester. We don't care what they say or what they assert. They are in a defensive posture. They have no credibility."

Her day in court In February, Levin filed a petition that asked the court to release Zheng from jail as immigration officials worked to deport her. Levin contended that China had not issued traveling documents for Zheng's return for at least a year and that it was unlikely she would be deported in the foreseeable future.

"It is unlawful for INS to continue to detain without parole conditions," he said. Two days before her Feb. 25 federal court hearing, INS officials notified Levin that Zheng's traveling documents had been located and that they would deport her in a week.

That rainy Friday afternoon, in a wood-paneled courtroom in the Mark O. Hatfield United States Courthouse, Zheng, wearing a white inmate uniform, sat before the judge's bench.

Jan Mullaney of McMinnville sat in the audience. Mullaney taught Zheng English during her stay at the Yamhill County jail. She offered to take Zheng in if she were released. Craig Casey, an assistant U.S. attorney representing the INS, argued that Zheng posed a flight risk. Casey explained that with the traveling documents, Zheng would be deported to Beijing in about a week.

"If you were to release her," Casey said, "we believe we would lose her."

Judge Owen Panner said that he was moved by Zheng's situation but that he did not feel he had the authority to grant her a release.

"It is a sympathetic case," Panner said. "But what we have to remember is that the immigration service has thousands and thousands of these cases going on. They have to have procedures, and they have to try to follow them."

After much of the courtroom had cleared out, Zheng sat and looked stunned. She had entered the courthouse hoping to be released into Mullaney's care. But the release INS had planned for her was a one-way ticket to China. "What happens to my case now?" Zheng asked.

In March, Levin appeared in federal court again asking that immigration officials hold off on Zheng's deportation until the Board of Immigration Appeals had a chance to consider whether it should reopen her case. Judge Panner granted the request.

Since then, more legal manuverings have taken place on all sides. The INS on Thursday challenged the decision Judge Panner made in March. Attorney Mark Potter has filed a motion to reopen Zheng's case with the immigration board. He says it may be months before the board decides whether to reopen her case.

In the meantime, Zheng waits. By next month, she will have spent two years waiting. "If I am released," she said in a telephone interview from jail, "I will go to a big open space, where no one can stop me, and I will scream, 'I am free.' "

You can reach Emily Tsao at 503-294-5968 or by e-mail at emilytsao@news.oregonian.com.